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Need advice in California


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Intro:

  1. Who is the named plaintiff in the suit?

               Me and a bunch of Does

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
        Mand***ch

3. How much are you being sued for?

20K+
4. Who is the original creditor? (if not the Plaintiff)

Well* *argo
5. How do you know you are being sued? (You were served, right?)

Served
6. How were you served? (Mail, In person, Notice on door)

This part seems off - the process server served my housemate, who told them (truthfully) that I was out of town, and signed her own name. But, the POS filed with the court says that I was personally served.

7. Was the service legal as required by your state?
        I'm not sure - they are allowed to serve me by giving the papers to my housemate, but that's not what they say they did. I have receipts for my plane tickets leaving before and coming back after they claim to have served me.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

The debt buyer, C*ch, sent letters, called and left messages. Unfortunately, I hadn't found this site and so didn't know to demand verification in writing.

9. What state and county do you live in?

California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Not sure when last paid on account but don't think I'm outside the SOL

11. What is the SOL on the debt?

I believe it is 4 years
 

12. What is the status of your case? Suit served? Motions filed? You can find this by a calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

                They have filed suit against me.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?

This is the crux of my issue: Many years ago, I opened a revolving line of credit for my business. When the economy and my business tanked, I was forced to close the business. I had stopped using the acct, but had been paying on it when I could. Once I had lost the business, I had no further income and told the OC that I would not be able to pay. I explained that the business was gone and that there were no assets left to pay the debt. They said that I was personally liable. I asked them to send me proof. They never did. After dunning me for about a year, they stopped. When I was contacted by C*ch, I asked for proof that the debt was personal. They told me they hadthe proof and would send it, then they claimed to have sent it. When the debt collector at the lawyer’s office called, I asked again. Same thing as before. When I wrote to the attorney confirming that the collection guy had said he’d send the proof, I didn’t hear anything until they had a process server at my door. I never received any kind of documentation.


14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

Unfortunately, no.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming.

I have to file my response in the next couple of days (assuming I act as though I was personally served.)


16. We need to know what the "charges" are. Please post what they are claiming. Common counts, account stated,breach of contract,for money received on behalf of the plaintiff, open book account,unjust enrichment.

They are claiming: 1) Breach of contract; 2) Breach of personal guarantee; 3) Unjust enrichment; and 4) Account stated.

17. Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

The complaint is not verified.

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

Nothing yet.

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

They did not send any evidence with the summons. There are no exhibits. There is an affidavit signed by one of the attorneys, on information and belief, under penalty of perjury, that venue is correct. In the complaint, the attorney states that he believes that I applied to the bank for credit. The statement of facts says that I used the account for business purposes and that as of a specific date 2 years ago, X amt was due. It also says that Well* *argo assigned the debt to C*ch.

 

My questions are as follows:

Do I ignore the way the process server lied about having personally served me? If no, what do I do about it?

If yes, which affirmative defenses do I assert? I've read various sample Answers one this site that assert up to 25 affirmative defenses. I don't know what some of them mean (Laches?) What about the SOL? I don't know when the last time was that I paid on the account - it is possible it was the date that the complaint uses for when they say the debt was owed. Do I claim it as a defense while I'm trying to get paperwork from the lawyer?

Finally, I've tried to find a timeline for what to do when on one of these cases in California without any luck. Any suggestions where to look?

Thanks in advance!

 

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Welcome suedinca,

Best places to start are threads from posters in CA.

These good people have all been in your shoes>

 

Read;

Calawyer "BOP vs Discovery"

ASTMedic "How I beat Midland"

readytowininca, her entire thread on fighting and winning her case

skippieB her entire thread fighting and winning

 

Other posters will chime in but these are great places to start you off studying the steps and tactics of winners.

 

 

As for the Affirmative Defenses, SOL is your best bet if you are correct that it's  past the SOL.

Have you checked your  credit report recently? The last payment and date of delinquency should be listed.

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Welcome to the forum, you are among friends!

 

Regarding the service, you can fight it if you want, but they will just serve you again properly and you'll be right back where you are now.  Besides, they actually did serve you properly, they just didn't put down what they actually did on the proof of service.  It is fine to leave the summons with someone over 18 at your place of residence and then send you a copy in the mail.

 

 

Be carful with listing a bunch of affirmative defenses, remember, any of them you list and choose to assert, becomes YOURS to prove, as in with evidence, accusations and denials will not suffice as evidence to prove your affirmative defenses.

 

I realize you already answered this but it is important, are the defendants listed just you and some Does, or is your company named as well?

 

By the way, the plaintiff is the one suing you.

 

Good advice from Beingchased.

 

If it is just you and some Does listed as defendants and the amount is less than 25k, you can use a general denial to answer the complaint.  You have 35 days, including allotted mailing time to you, to answer.  You must answer or they will get a default judgment against you and you loose.  Here if the form for a general denial.

 

Good Luck,

 

rt

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As usual, great advice from Calawyer.

 

Here’s a sample BOP (Bill Of Particulars) you can use.  Just edit the text in the  [ ] areas to your needs.  Also, you might want to look up and read CCP § 454 (California Code of Civil Procedure, section 454) which is the statute under which a BOP is appropriate.

 

rt

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Welcome suedinca,

Best places to start are threads from posters in CA.

These good people have all been in your shoes>

 

Read;

Calawyer "BOP vs Discovery"

ASTMedic "How I beat Midland"

readytowininca, her entire thread on fighting and winning her case

skippieB her entire thread fighting and winning

 

Other posters will chime in but these are great places to start you off studying the steps and tactics of winners.

 

 

As for the Affirmative Defenses, SOL is your best bet if you are correct that it's  past the SOL.

Have you checked your  credit report recently? The last payment and date of delinquency should be listed.

Thanks for the suggestions re which threads to start reading. I've been flailing around a lttle - this site is both resource rich and a little overwhelming.

The credit report was a great idea. Unfortunately, now I know SOL isn't going to do me any good.

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Welcome to the forum, you are among friends!

 

Regarding the service, you can fight it if you want, but they will just serve you again properly and you'll be right back where you are now.  Besides, they actually did serve you properly, they just didn't put down what they actually did on the proof of service.  It is fine to leave the summons with someone over 18 at your place of residence and then send you a copy in the mail.

 

 

Be carful with listing a bunch of affirmative defenses, remember, any of them you list and choose to assert, becomes YOURS to prove, as in with evidence, accusations and denials will not suffice as evidence to prove your affirmative defenses.

 

I realize you already answered this but it is important, are the defendants listed just you and some Does, or is your company named as well?

 

By the way, the plaintiff is the one suing you.

 

Good advice from Beingchased.

 

If it is just you and some Does listed as defendants and the amount is less than 25k, you can use a general denial to answer the complaint.  You have 35 days, including allotted mailing time to you, to answer.  You must answer or they will get a default judgment against you and you loose.  Here if the form for a general denial.

 

Welcome to the forum, you are among friends!

 

Regarding the service, you can fight it if you want, but they will just serve you again properly and you'll be right back where you are now.  Besides, they actually did serve you properly, they just didn't put down what they actually did on the proof of service.  It is fine to leave the summons with someone over 18 at your place of residence and then send you a copy in the mail.

 

 

Be carful with listing a bunch of affirmative defenses, remember, any of them you list and choose to assert, becomes YOURS to prove, as in with evidence, accusations and denials will not suffice as evidence to prove your affirmative defenses.

 

I realize you already answered this but it is important, are the defendants listed just you and some Does, or is your company named as well?

 

By the way, the plaintiff is the one suing you.

 

Good advice from Beingchased.

 

If it is just you and some Does listed as defendants and the amount is less than 25k, you can use a general denial to answer the complaint.  You have 35 days, including allotted mailing time to you, to answer.  You must answer or they will get a default judgment against you and you loose.  Here if the form for a general denial.

 

Good Luck,

 

rt

 

Welcome to the forum, you are among friends!

 

Regarding the service, you can fight it if you want, but they will just serve you again properly and you'll be right back where you are now.  Besides, they actually did serve you properly, they just didn't put down what they actually did on the proof of service.  It is fine to leave the summons with someone over 18 at your place of residence and then send you a copy in the mail.

 

 

Be carful with listing a bunch of affirmative defenses, remember, any of them you list and choose to assert, becomes YOURS to prove, as in with evidence, accusations and denials will not suffice as evidence to prove your affirmative defenses.

 

I realize you already answered this but it is important, are the defendants listed just you and some Does, or is your company named as well?

 

By the way, the plaintiff is the one suing you.

 

Good advice from Beingchased.

 

If it is just you and some Does listed as defendants and the amount is less than 25k, you can use a general denial to answer the complaint.  You have 35 days, including allotted mailing time to you, to answer.  You must answer or they will get a default judgment against you and you loose.  Here if the form for a general denial.

 

Good Luck,

 

rt

<embarassed> Plaintiff is C*CH. (Is there a way I can edit the original post to change that rather blatent goof?)

They did not file against the company, though they could join it as one of the Does. Company has no assets.
Thanks for link to denial.
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I would send a BOP immediately and ask for all account statements.  If plaintiff does not respond by the time you have to answer, I would allege, on information and belief, that the complaint is barred by the SOL.

W/ Rivertime's suggestion of checking credit report, I now feel pretty certain that SOL won't work. I've prepared the BOP which will go out tomorrow, w/ the proof of service prepared for if/when I need it as an exhibit for the court. I'm within the time limit to file my denial. Based on what other people have said about the plaintiff and their lawyers, doesn't seem likely they'll send much in response. And they can't send what doesn't exist - I did not personally guarantee the line of credit. So, is there any other reason I should wait until the end of the response period to file my denial?

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i dont think it really matters, just make sure its well within the 30 days by a day or more.

 

also - check your local courts rules. in our county when filing a general denial, you MUST file proof of service with the court concurrently

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W/ Rivertime's suggestion of checking credit report, I now feel pretty certain that SOL won't work. I've prepared the BOP which will go out tomorrow, w/ the proof of service prepared for if/when I need it as an exhibit for the court. I'm within the time limit to file my denial. Based on what other people have said about the plaintiff and their lawyers, doesn't seem likely they'll send much in response. And they can't send what doesn't exist - I did not personally guarantee the line of credit. So, is there any other reason I should wait until the end of the response period to file my denial?

What you see on the credit report is a creditor telling the credit reporting agency what it believes to be the date of delinquency.  Even if it is the original creditor, that date could well be wrong.  If it is the JDB, however, it is even more likely to be wrong. 

 

 

You will only know for sure when (if) you see the actual account statements.  If you don't receive them before your answer must be filed, consider alleging the SOL on information and belief.  Otherwise, you will have to file a motion for permission to amend your answer if you discover a factual basis for the defense during discovery. 

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  • 2 months later...

Continuing to do battle, wondering if anyone has any info re pro v anti defendant bias in these cases by Judge R Freedman. Alameda Cty?

He is a pretty fair judge. One of our CA guys had a really fair case with him. Good question and everyone should look into that in their cases. as for the motion to quash for improper service it will just waste time if you don't have a default judgment based on the improper service.

 

The strategy is to BOP and when they don't answer file a demurrer if their are vague issues or a general denial(we have both available here). the timelines are very important and now is the correct time to prepare your folders and stuff.

If you organize the paperwork now it will be easier later.

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Continuing to do battle, wondering if anyone has any info re pro v anti defendant bias in these cases by Judge R Freedman. Alameda Cty?

You can go to your local law library and find a book called "judges opinions" and look him up. Often there are a lot of personal opinions from the judge, info on how he handles motions etc. You may also go to your courts website and look up the court docket and see his cases and how  has ruled.

There is a lot of info on beating bottom feeders here in Cali, maybe more than any other state, so if you haven't found it yet; you may be missing something.

 

I personally would wait until the end of the response period to file the answer, you can learn as much as possible,  let them wait, always use time to your advantage. As an example; I would be using the time to see if I could come up with a cross complaint. That is something that would give you some leverage. I would expect a pretty hard fight judging from the amount they are after. Maybe you could add a cross complaint for a FDCPA violation for failure to validate the debt? It will make them work harder and gives you some leverage that you may be able to use later for negotiations (better settlement, both parties dismiss their cases, etc.) Good Luck.

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I tried to PM you but can't. I can supply you with a great answer and yes the same thing happened to me with them lying about serving me. I can explain to you why not to both with that. I did file a motion, the only thing it did was buy me more time to answer which in the end didn't matter. I already had an answer from a previous case that fit.

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  • 3 months later...

I have a couple of questions -

1) The evil opposition has filed a motion, received yesterday, scheduled to be heard in approx 3 wks.How long do I have to file an something opposing it?

2) Plaintiffs filed an unverified complaint (with the exception of the section on Venue.) I sent a document production request. They responded by saying that most of my questions go to materials in the hands of 3rd parties and are overbroad, unduly burdensome, go to workproduct or are generally too much like actual work. They did come up with a "cardmember agreement" which the attorney responding to the motion seemed to think was from the era in which I supposedly opened the account, though how he could tell is a pretty good question as it is uncaptioned and undated. They also produced a single sheet purporting to transfer the debt, with my name and for a particular sum (no breakdown re princple/interest/penalties) from the original bank to the new creditor. They blacked out the amount paid. This is the complete discovery I've received in this 20+Klawsuit. Oh, yes, 6 months after they filed suit, they claim that their investigation is "continuing" which is why they don't have anything else to give me. Nearly a month ago, I sent another, much more specific document production request. Still haven't heard back. Clearly it's time to file a motion, but what should it be for? A motion to compel production of the documents? Can I file a motion to ask the Judge to dismiss the case as they obviously either don't have any evidence, or they are refusing to tell me what it is? Suggestions welcome.

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